J O I N T
C E N T E R
AEI-BROOKINGS JOINT CENTER FOR REGULATORY STUDIES
Constitutional Issues in Information Privacy
Fred Cate and Robert E. Litan
Working Paper 01–11
September 2001
Mr. Cate is Professor of Law, Ira C. Batman Faculty Fellow, and Director of the Information Law and Commerce
Institute at the Indiana University School of Law–Bloomington, and Senior Fellow of the Hunton & Williams Center
for Information Policy Leadership. Mr. Litan is Codirector of the AEI-Brookings Joint Center for Regulatory Studies;
Vice President and Director of the Economic Studies Program and Cabot Family Chair in Economics at the Brookings
Institution. The views expressed here represent those of the authors and do not necessarily reflect those of the
institutions with which they are affiliated.
J O I N T
C E N T E R
In response to growing concerns about understanding the impact of regulation on consumers, business,
and government, the American Enterprise Institute and the Brookings Institution have established the
AEI-Brookings Joint Center for Regulatory Studies. The primary purpose of the center is to hold
lawmakers and regulators more accountable by providing thoughtful, objective analysis of existing
regulatory programs and new regulatory proposals. The Joint Center builds on AEI’s and Brookings’s
impressive body of work over the past three decades that has evaluated the economic impact of
regulation and offered constructive suggestions for implementing reforms to enhance productivity and
consumer welfare. The views in Joint Center publications are those of the authors and do not
necessarily reflect the views of the staff, council of academic advisers, or fellows.
ROBERT W. HAHN
Director
ROBERT E. LITAN
Codirector
COUNCIL OF ACADEMIC ADVISERS
KENNETH J. ARROW
Stanford University
MAUREEN L. CROPPER
University of Maryland
and World Bank
PHILIP K. HOWARD
Covington & Burling
PAUL L. JOSKOW
Massachusetts Institute
Of Technology
RODNEY W. NICHOLS
New York Academy
of Sciences
ROGER G. NOLL
Stanford University
GILBERT S. OMENN
University of Michigan
PETER PASSELL
RICHARD SCHMALENSEE
Massachusetts Institute
of Technology
ROBERT N. STAVINS
Harvard University
CASS R. SUNSTEIN
Milken Institute
University of Chicago
W. KIP VISCUSI
Harvard University
© 2001 AEI-Brookings Joint Center for Regulatory Studies. All rights reserved.
All Joint Center publications can be found at www.aei.brookings.org
Executive Summary
The U.S. Constitution has been largely ignored in the recent flurry of privacy laws and
regulations designed to protect personal information from incursion by the private sector, despite the
fact that many of these enactments and efforts to enforce them significantly implicate the First
Amendment. Questions about the role of the Constitution have assumed new importance in the
aftermath of the September 11 terrorist attacks on the World Trade Center and the Pentagon. Efforts to
identify and bring to justice the perpetrators and to protect against future terrorist attacks, while
threatening to weaken constitutional protections against government intrusions into personal privacy,
demonstrate vividly the value of information collected in the marketplace and the need for such
information in the future.
While there is some suggestion that the First Amendment may be a source of privacy rights
applicable to the collection and use of personal information by the private sector, it is clear that the First
Amendment restrains the power of the government to enact and enforce privacy laws that curtail
expression. The precise extent of that restraint depends on a number of factors, not all of which have
been clearly resolved by the Supreme Court. But, as the events of September 11 starkly remind us, the
price of privacy may be very high indeed. Legislators, regulators, and prosecutors who ignore the First
Amendment when considering privacy laws do so at their—and our—peril.
1
Constitutional Issues in Information Privacy
Fred H. Cate 1
Robert Litan2
I.
The Absent Constitution
The past three years have witnessed a surge in legislation, regulation, and litigation designed to
protect the privacy of personal information. In 1998 Congress adopted legislation restricting the
collection and use of information from children online,3 and the following year enacted the first
comprehensive federal financial privacy legislation as part of the Gramm-Leach-Bliley Financial Services
Modernization Act,4 as well as the first federal law prohibiting access to historically open public records
without individual “opt-in” consent.5 Federal regulators have not only implemented these and other
privacy laws, but also adopted sweeping health privacy rules under the Health Insurance Portability and
Accountability Act6 and negotiated a privacy “safe harbor” for U.S. companies seeking to comply with
European privacy law. The Federal Trade Commission, under former Chairman Robert Pitofsky,
reversed its longstanding position and released two proposals for legislation concerning adult’s online
privacy.7 Newly installed Chairman Tim Muris has promised renewed enforcement of existing privacy
laws and policies, even while re-examining the FTC’s support for new privacy legislation. And state
legislatures have considered more than 400 privacy bills while state attorneys general have initiated
aggressive privacy investigations and litigation.
Largely absent from this surge in federal and state privacy efforts, and from the public and
academic debate that has surrounded it, is any discussion of the role of the Constitution. Do public
officials have the constitutional authority to restrict the collection and use of information by the private
sector in an effort to protect privacy? Do those restrictions implicate the First Amendment and other
provisions of the Bill of Rights that often restrain government authority? Does the Constitution include a
“right to privacy” outside of the context of government intrusions? These and many other related
questions have not only not been answered, but in many cases not even addressed, in the current
privacy debate, yet their resolution goes to the very heart of the government’s power to adopt and
enforce laws designed to protect privacy.
2
Moreover, these questions have assumed new importance in the aftermath of terrorist attacks
on the World Trade Center and the Pentagon. Many observers worry that one long-term effect may be
to weaken the considerable constitutional protections against government invasions of personal privacy.
At the same time, efforts to identify and bring to justice the perpetrators and to protect against future
terrorist attacks also demonstrate vividly the value of information collected in the marketplace and the
need for such information in the future. To the extent that a “right to privacy” limits the availability of that
information, the price of privacy may be very high indeed. As a result, there is a new urgency to
determining whether the Constitution argues in favor or against the existence of such a right in the
context of information collection and use by the private sector.
To address the role of the Constitution in privacy protection, the AEI-Brookings Joint Center
for Regulatory Studies hosted a one-day roundtable in Washington in May 2001. The Center brought
together constitutional law scholars, economists, privacy advocates, privacy theorists, prominent current
and former government officials, and leading privacy law practitioners for a free-wheeling discussion of
constitutional issues in information privacy. (A list of participants is attached.) The participants
addressed the major constitutional provisions that might be applicable to the government’s power to
protect privacy from private-sector encroachment, as well as a number of related issues.
This report summarizes the substantive issues the participants discussed and the general
conclusions they reached. Each participant has had an opportunity to review a draft of this document
and to include a separate statement reflecting his or her own individual perspective on the subject. This
report, therefore, purports to be neither a complete record of the discussion nor a statement of any
consensus reached. Rather, it seeks to capture the key elements of the day’s debate in an effort to
further the inquiry of policymakers and legal scholars of all forms into the role of the Constitution in the
on-going privacy debate.
The report is divided into three sections: The first provides an overview of the constitutional
provisions discussed during the roundtable; the second focuses on the role of the First Amendment, the
constitutional provision most likely to be implicated by privacy laws; and the third highlights some of the
3
general observations about, and tensions implicit in, efforts to use law to protect the privacy of personal
information.
II.
Constitutional Contenders
Efforts to adopt and enforce legal restrictions on the collection and use of information by the
private sector in an effort to protect privacy potentially implicate several provisions of the U.S.
Constitution.
Constitutional Sources of a Privacy Right
In 1965, the Supreme Court decided in Griswold v. Connecticut that an 80-year-old
Connecticut law forbidding the use of contraceptives violated the constitutional right to “marital
privacy.”8 Justice Douglas, writing for the Court, identified a variety of constitutional sources for this
right:
Various guarantees create zones of privacy. The right of association contained in the
penumbra of the First Amendment is one. . . . The Third Amendment in its prohibition
against the quartering of soldiers “in any house” in time of peace without the consent of
the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the
“right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination
Clause enables the citizen to create a zone of privacy which government may not force
him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in
the Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people.”9
Justice Douglas wrote that the “specific guarantees in the Bill of Rights have penumbras, formed
by emanations from those guarantees that help give them life and substance.”10 It was in these
4
“penumbras, formed by emanations” that the Court grounded constitutional protection for the right to
marital privacy and, in subsequent cases, other privacy rights.
Constitutional privacy rights, as with virtually all constitutional rights, have been applied only
against the government. So, for example, courts interpret the Fourth Amendment to apply only to
searches and seizures by the government, usually in a criminal context. Some commentators, however,
have argued that the existence of a constitutional right to privacy may allow, or require, the government
to enact laws to restrict the collection and use of personal information by the private sector. The
preamble to the recent Health Insurance Portability and Accountability Act health privacy rules,11 for
example, discusses at length the Fourth Amendment right to be free from “unreasonable searches and
seizures” by the government and the right to protect some information from mandatory disclosure to the
government recognized by the Supreme Court in Whalen v. Roe,12 as a justification for rules regulating
health-related information in the private sector.
To date, there is little judicial support for this position, although this situation may be beginning
to change. Historically, while the Supreme Court on occasion has addressed citizens’ interest in privacy
from nongovernmental intrusion, it almost never identifies the source of that interest as the Constitution
(as opposed to statutory or common law). In fact, the Court has intimated a constitutional right
applicable to private-sector acquisition or use of personal information only twice. In Harper & Row,
Publishers, Inc. v. Nation Enterprises, a case involving the “scooping” of President Ford’s memoirs
by the Nation magazine prior to their publication by Harper & Row, the Court quoted a New York
state appellate judge for the proposition:
“The essential thrust of the First Amendment is to prohibit improper restraints on the
voluntary public expression of ideas; it shields the man who wants to speak or publish
when others wish him to be quiet. There is necessarily, and within suitably defined areas,
a concomitant freedom not to speak publicly, one which serves the same ultimate end as
freedom of speech in its affirmative aspect.”13
5
The Supreme Court used this quote to help justify, in part, why it was not expanding the
copyright doctrine of fair use to provide an affirmative First Amendment right to publish newsworthy
expression without regard for its copyright. At issue before the Court, therefore, was no privacy claim,
but rather whether the First Amendment required a broader reading of fair use.
In May 2001, however, the Court quoted this same language for the first time in a case involving
privacy. In Bartnicki v. Vopper, decided after the Joint Center roundtable, the Supreme Court faced
the question of whether the broadcast of an illegally intercepted cellular telephone conversation was
protected by the First Amendment.14 The Court reiterated the same passage it had quoted in Harper &
Row 16 years earlier to demonstrate that “[p]rivacy of communication is an important interest.”15
Nevertheless, the Court found that because the information at issue was true, on a matter of public
concern, and obtained by a third party without the knowledge or participation of the radio station that
subsequently disclosed it, the First Amendment’s protection for expression exceeded whatever
protection it provided for privacy
Whether the Constitution protects individuals’ interests in avoiding collection and use of
information about them by private-sector entities is a critical question, but Bartnicki is a slender basis
for such a claim. Whether the case will prove to be a real change in the Court’s thinking, or whether it is
merely an aberration, remains to be seen.
Constitutional Limits on Protecting Privacy
Because the Constitution establishes the powers of the government and also the limits on those
powers, it is not surprising that there are many constitutional provisions that might limit the government’s
ability to adopt and enforce laws protecting privacy. The most obvious—and, in the view of the
participants in the Joint Center roundtable, the most significant—provision is the First Amendment’s
protection for freedom of expression. Before turning to the First Amendment, however, we briefly
address the six other provisions that the participants discussed and that most concluded were unlikely to
impose any substantive limit on the government’s power to protect information privacy.
6
•
The Fourth Amendment
The Fourth Amendment is the basis for the Supreme Court’s oldest and most well-developed
jurisprudence on a constitutional right to privacy. Although, as noted above, Fourth Amendment cases
involve searches and seizures by the government, the principles developed there might potentially be
instructive in other settings. For example, when evaluating wiretaps and other seizures of private
information, the Court has protected only those expectations of privacy that were, in the Court’s view,
reasonable: The data subject must have actually expected that the information was private, and that
expectation must be “one that society is prepared to recognize as ‘reasonable.’”16 The Court adopted
this two-part test in 1968 and continues to apply it today, with somewhat uneven results.17
Some courts have borrowed from Fourth Amendment jurisprudence when evaluating privacy
restrictions in other settings. For example, the U.S. Court of Appeals for the Fourth Circuit focused on
the “reasonable expectation of privacy” in its decision striking down the 1994 Drivers Privacy
Protection Act.18 In that case, South Carolina Attorney General Charlie Condon argued that a federal
restriction on the use of state public record data for “marketing, solicitation, or survey” purposes
violated the First Amendment. The appellate court agreed, writing that “neither the Supreme Court nor
this Court has ever found a constitutional right to privacy with respect to the type of information found in
motor vehicle records. Indeed, this is the very sort of information to which individuals do not have a
reasonable expectation of privacy.”19 The court found that it would be unreasonable to prevent the
disclosure of such information because “the same type of information is available from numerous other
sources. . . . As a result, an individual does not have a reasonable expectation that the information is
confidential.”20 The Supreme Court ultimately reversed the Fourth Circuit on an unrelated point, and
therefore never reached the First Amendment issue,21 and few other courts have relied on Fourth
Amendment concepts or cases when evaluating privacy protections aimed nongovernmental intrusions.
As a result, while the Fourth Amendment could prove to be important as a source of principles
for evaluating privacy laws regulating private sector activities, it is has not played that role to date. And
the contours of the Fourth Amendment itself are under renewed scrutiny following the September 11
7
terrorist attacks and subsequent proposals for increased government surveillance, national identification
numbers, and passenger profiling.
•
The Fifth Amendment
The Fifth Amendment to the U.S. Constitution prohibits the government from taking private
property for public use without both due process of law and just compensation. Historically, the
Supreme Court has applied the “takings clause” to require compensation when the government
physically appropriated real property, even if only a tiny portion of the property at issue was occupied
or if that occupation was only temporary. Beginning in 1922, however, the Court has found a
compensable taking even when the government does not engage in physical occupation and when the
property involved is not land or even tangible property, but rather a legal entitlement, government
benefit, or interest in continued employment.
In 1984, the Supreme Court decided Ruckelshaus v. Monsanto Company, in which it
extended the Fifth Amendment takings clause to protect stored data.22 The Court found that the
Environmental Protection Agency’s use of Monsanto’s proprietary research data constituted a
compensable taking. The Court in Ruckelshaus, as in all regulatory takings cases, faced two
fundamental questions: whether there was “property” and, if so, whether it was “taken” by the
government’s action. The first question presented little difficulty, because state law recognizes a
property right in “trade secrets” and other confidential business information, and the possessors of such
data have long been accorded property-like rights to control access to, and the use of, business
information. To answer the second question, the Court focused on Monsanto’s “reasonable investmentbacked expectation with respect to its control over the use and dissemination of the data,” finding that
Monsanto had invested substantial resources in creating the data and reasonably believed that they
would not be disclosed by the EPA. 23
Some commentators have suggested that the Supreme Court’s recognition of these “regulatory
takings”—including takings of stored data—suggests that privacy regulations that substantially interfere
with a private party’s use of data that it has collected or processed, may require compensation under
the Fifth Amendment. However, some participants in the roundtable noted that even if a privacy law
8
interfered with a “reasonable investment-backed expectation with respect to its control over the use and
dissemination of the data,” it is unlikely that a court would find that the data user or collector had the
requisite “property” interest in information about a data subject. Ruckelshaus involved trade secrets,
which courts have long treated as property, while most privacy laws affect information that is not clearly
property owned by anyone, and certainly not clearly owned by a third party data collector or user. In
addition, even if this obstacle to a takings claim were overcome, it ordinarily would be difficult to
demonstrate that the interference with the information was sufficiently great to constitute a taking.
Finally, even when a government regulation deprives a property owner of all use of his property,
the Supreme Court has historically declined to find a taking, and therefore not required compensation,
when the regulation merely abated a “noxious use” or “nuisance-like” conduct. Such a regulation does
not constitute a taking of private property, because one never has a property right to harm others.24 In
1992, the Supreme Court somewhat backed away from this “prevention of harmful use” exception,
recognizing that the government could virtually always claim that it was regulating to prevent a harmful
use.25 Nevertheless, the Court permits the government to adopt regulations depriving property “of all
economically beneficial use,” provided that the government can show that its power to promulgate the
regulation inhered in the “background principles of the State’s law of property and nuisance.”26
Given the substantial uncertainty over whether personal information may be considered as the
property of a third-party, and the difficulty of demonstrating both that a regulation poses a sufficiently
great interference with a “reasonable investment-backed expectation” and that the interference was not
necessary to abate a generally harmful use of that information, the participants generally doubted
whether the takings clause is likely to play a significant role in future privacy litigation.
•
The Commerce Clause and the Tenth Amendment
Two key issues concern Congress’ constitutional authority to legislate to protect privacy. The
first is grounded in the commerce clause:27 Is enacting privacy laws a proper exercise of Congress’
authority to regulate interstate commerce under the commerce clause? The other constitutional issue is
raised by the Tenth Amendment, which reserves to the states and to the people all powers not explicitly
granted in the Constitution to the federal government. Under the Supreme Court’s somewhat
9
convoluted Tenth Amendment jurisprudence, Congress can neither compel a state to enact or enforce a
federal regulatory program nor achieve the same result by conscripting the state’s officers directly. The
Tenth Amendment is, therefore, implicated when the federal government prescribes privacy standards
that state and local governments must enact or enforce.
Both issues were raised explicitly in the privacy context in Reno v. Condon,28 in which South
Carolina challenged Congress’ authority to pass the Drivers Privacy Protection Act—a federal law that
mandated that states restrict access to motor vehicle record information. The Supreme Court, by a
unanimous vote, rejected both commerce clause and Tenth Amendment challenges to the statute.
With regard to the commerce clause argument, the Court concluded that the law was within
Congress’ power under the commerce clause because (1) motor vehicle information is “used by
insurers, manufacturers, direct marketers, and others engaged in interstate commerce;” (2) that
information is also “used in the stream of interstate commerce by various public and private entities for
matters related to interstate motoring;” and (3) “drivers’ information is, in this context, an article of
commerce” sold or released into the “interstate stream of business.”29 The Supreme Court rejected the
Tenth Amendment challenge on the basis that the Act “does not require the States in their sovereign
capacity to regulate their own citizens” in the furtherance of a federal regulatory scheme; rather it
regulates the states themselves, “as the owners of databases.”30
The breadth of the Court’s opinion led most of the participants in the roundtable to conclude
that the Court is very likely to find that future privacy laws are within Congress’ purview and not
susceptible to challenges based on the commerce clause or the Tenth Amendment.
•
The Nondelegation Doctrine
Article 1, Section 1 of the Constitution provides that “All legislative Powers shall be vested in a
Congress.” The “nondelegation doctrine” provides that a legislature may not generally confer upon
another branch of government or an administrative body legislative power; instead, the legislature must
provide some degree of direction and some limit on the agency’s discretion.31 Some commentators have
argued that the privacy provisions of the Health Insurance Portability and Accountability Act of 1996
violated the nondelegation doctrine by specifying that if Congress failed to enact health privacy rules, the
10
Department of Health and Human Services was to do so.32 If Congress engaged in an unconstitutional
delegation of its legislative power, then the health privacy rules issued by HHS in December 2000
would likely be unconstitutional.33 In July, the South Carolina and Louisiana Medical Societies filed a
suit challenging the constitutionality of the health privacy rules on nondelegation, as well as other,
grounds.34
The success of any nondelegation challenge seems doubtful following the Supreme Court’s
February 2001 decision in Whitman v. American Trucking Associations.35 There the Court
addressed a nondelegation challenge in another context and concluded, 7–2, that Congress had not
violated the doctrine when it delegated extensive rulemaking authority to the Environmental Protection
Agency. The breadth and recency of the Court’s ruling led most of the roundtable participants to believe
that a nondelegation doctrine challenge to the health privacy rules issued under the Health Insurance
Portability and Accountability Act would be unlikely to succeed; the barest direction from Congress to
administrative agencies is apparently sufficient under Article 1, Section 1.
•
The Compact Clause
The final constitutional provision that the participants in the Joint Center roundtable considered
and rejected as only remotely implicated by the adoption and enforcement of privacy rules was the
compact clause. The compact clause provides that “[n]o state shall, without the consent of congress, . .
. enter into any agreement or compact with another state, or with a foreign power . . . .”36 Compared to
the other constitutional provisions outlined above, the compact clause has been the subject of little
judicial discussion. As a general matter, the Supreme Court has held that the application of the compact
clause is limited to agreements that increase the power of the states such that the combined state’s
power impinges on the “just supremacy of the United States.” Thus the relevant question is the impact of
the agreement on the “federal structure.”37 Some commentators have suggested that the recent trend by
states attorneys general to band together in common investigations, litigation, and settlements concerning
the privacy practices of banks and other institutions reflect a compact among states that is prohibited if
not sanctioned by Congress.
11
The participants believed, however, that the compact clause was in fact unlikely to be implicated
by these actions because they merely involved the common management of litigation, an activity
routinely pursued by state attorneys general collectively, rather than the states acting pursuant to a
compact to increase their political power vis-à-vis Congress or other states.38
By the conclusion of the roundtable, most of the participants had reached the conclusion that
whatever the relevance of these six constitutional provisions—the Fourth and Fifth Amendments, the
commerce clause, the Tenth Amendment, the nondelegation doctrine, and the compact clause—none
appear likely to impose any practical limit on the government’s power to adopt and enforce laws
designed to restrict the collection and use of personal information by the privacy sector. This may not be
the case in the future or if the government were to act outrageously, but it appears to be the case today
for all practical purposes.
However, the situation appears to be very different for the First Amendment, and it is this
constitutional provision to which we now turn.
III.
•
The First Amendment
The Dominance of Freedom of Expression
The First Amendment is not only a source of potential privacy rights, as discussed above, but
also a significant restraint on the power of the government to restrict the publication or communication of
information. The Supreme Court has decided many cases in which individuals sought to stop, or obtain
damages for, the publication of private information, or in which the government restricted expression in
an effort to protect privacy. Virtually without exception, the Court has upheld the right to speak or
publish or protest under the First Amendment, to the detriment of the privacy interest. For example, the
Court has rejected privacy claims by unwilling viewers or listeners in the context broadcasts of radio
programs in city streetcars,39 R-rated movies at a drive-in theater,40 and a jacket bearing an the phrase
“Fuck the Draft” worn in the corridors of a courthouse.41 The Court has struck down ordinances that
would require affirmative “opt-in” consent before receiving door-to-door solicitations,42 Communist
literature,43 or even “patently offensive” cable programming.44
12
Plaintiffs rarely win suits brought against speakers or publishers for disclosing private
information. When information is true and obtained lawfully, the Supreme Court has repeatedly held that
the government may not restrict its disclosure without showing a very closely tailored, compelling
governmental interest—“strict scrutiny”—the highest level of constitutional scrutiny. Under this
requirement, the Court has struck down laws restricting the publication of confidential government
reports,45 and of the names of judges under investigation,46 juvenile suspects,47 and rape victims.48
Even when the information is false, the Supreme Court has been loathe to allow restrictions on
its collection and dissemination. Under the Court’s interpretations of the First Amendment, plaintiffs
cannot recover for the harm caused by the publication of false and defamatory expression—if that
expression is on a matter of public interest—unless the plaintiff can prove its falsity.49 Public officials and
public figures may not recover for damage caused by false expression, no matter how personal, unless
they can demonstrate with “convincing clarity” that the publisher knew of the falsity or was reckless
concerning it.50 And the Court has eliminated entirely any recourse by public plaintiffs for the publication
of true information, even if highly defamatory or personal.51
The historical dominance of the free expression interests over the privacy interests is so great
that Peter Edelman has written:
[T]he Court [has] virtually extinguished privacy plaintiff’s chances of recovery for
injuries caused by truthful speech that violates their interest in nondisclosure. . . . If the
right to publish private information collides with an individual’s right not to have that
information published, the Court consistently subordinates the privacy interest to the free
speech concerns.52
•
The Limited Role of Commercial Speech
The trumping of free expression over privacy under the First Amendment is true irrespective of
whether the speaker is an individual or an institution. Even wholly commercial expression is protected by
the First Amendment. The Court has found that such expression, if about lawful activity and not
misleading, is protected from government intrusion unless the government can demonstrate a
13
“substantial” public interest, and that the intrusion “directly advances” that interest and is “narrowly
tailored to achieve the desired objective.”53
Moreover, the Court does not characterize expression as “commercial”—and therefore subject
government regulations concerning it to this lower, “intermediate scrutiny”—just because it occurs in a
commercial context. The speech of corporations is routinely accorded the highest First Amendment
protection—“strict scrutiny” review—unless the Court finds that the purpose of the expression is to
propose a commercial transaction54 or that the expression occurs in the context of a regulated industry
or market (such as the securities exchanges) and concerns activities which are, if fact, highly regulated
(the sale of securities).55
Even if the expression is “commercial,” the Court requires that the government demonstrate that
“the harms it recites are real” and that “its restriction will in fact alleviate them to a material degree.”56
•
The Problem of “Nonpublic” Uses
The Supreme Court reasserted, and perhaps even expanded, the dominance of free expression
interests in the recent case of Bartnicki v. Vopper.57 There the Court explicitly balanced the
constitutional interests in privacy and expression, and held that the broadcast of an illegally intercepted
cellular telephone conversation was protected by the First Amendment. The Court quoted from its
earlier cases on the importance of expression:
Exposure of the self to others in varying degrees is a concomitant of life in a civilized
community. The risk of this exposure is an essential incident of life in a society which
places a primary value on freedom of speech and of press. “Freedom of discussion, if it
would fulfill its historic function in this nation, must embrace all issues about which
information is needed or appropriate to enable the members of society to cope with the
exigencies of their period.”58
14
As this suggests, the Court in Bartnicki clearly based its holding on the fact that the intercepted
cellular telephone conversation involved a matter of public interest—labor negotiations over public
school teacher salaries. An important and unresolved issue is how the Court, when balancing privacy
and freedom of expression, will weigh the First Amendment interest in expression that does not involve
any public interest or that is not being published (as opposed to being used in some private manner).
In 1985 in Dun & Bradstreet v. Greenmoss Builders, the Supreme Court determined that the
considerable constitutional obstacles to allowing plaintiffs to recover for false and defamatory expression
in the mass media, did not apply where the defamation occurred in a credit report, distributed under a
confidentiality agreement to only five subscribers.59 Although a majority of the Justices could not agree
on a single rationale for their decision, a majority seemed to share the view that the First Amendment
interest in expression on matters of private concern is less than that for matters of public concern.
However, it must be remembered that Dun & Bradstreet involved false speech and a claim of
harm resulting from the falsity, where privacy cases by definition involve true speech and claims of harm
resulting from the truth of the information collected or disclosed. The Court went out of its way to clarify
that its decision was not intended to reduce the First Amendment protection afforded to commercial or
economic expression: “We also do not hold . . . that the report is subject to reduced constitutional
protection because it constitutes economic or commercial speech.”60
Moreover, in Bartnicki, while focusing on the fact that the expression at issue did concern a
matter of great public interest, the Court nevertheless added in a footnote: “Moreover, ‘our decisions
establish that absent exceptional circumstances, reputational interests alone cannot justify the
proscription of truthful speech,’” citing to a long line of prior decisions.61 This suggests that even
expression not on a matter of public importance, if truthful, would be difficult to restrain constitutionally.
This was certainly the view of the U.S. Court of Appeals for the Tenth Circuit when presented
with a First Amendment challenge to Federal Communications Commission rules that required U.S.
West to get “opt-in” consent from customers before using data about their calling patterns to determine
which customers to contact or what offer to make them.62 The appellate court, 2–1, found that the
FCC’s rules, by limiting the use of personal information when communicating with customers, restricted
15
U.S. West’s speech and therefore were subject to First Amendment review. Although the court applied
intermediate scrutiny, it determined that under the First Amendment, the rules were presumptively
unconstitutional unless the FCC could prove otherwise by demonstrating that the rules were necessary
to prevent a “specific and significant harm” on individuals, and that the rules were “‘no more extensive
than necessary to serve [the stated] interests.’”63
Although we may feel uncomfortable knowing that our personal information is circulating
in the world, we live in an open society where information may usually pass freely. A
general level of discomfort from knowing that people can readily access information
about us does not necessarily rise to the level of substantial state interest under Central
Hudson [the test applicable to commercial speech] for it is not based on an identified
harm.64
The court found that for the Commission to demonstrate that the “opt-in” rules were sufficiently
narrowly tailored, it must prove that less restrictive “opt-out” rules would not offer sufficient privacy
protection, and it must do so with more than mere speculation:
Even assuming that telecommunications customers value the privacy of [information
about their use of the telephone], the FCC record does not adequately show that an
opt-out strategy would not sufficiently protect customer privacy. The respondents
merely speculate that there are a substantial number of individuals who feel strongly
about their privacy, yet would not bother to opt-out if given notice and the opportunity
to do so. Such speculation hardly reflects the careful calculation of costs and benefits
that our commercial speech jurisprudence requires.65
The court found that the FCC had failed to show why more burdensome “opt-in” rules were
necessary, and therefore struck down the rules as unconstitutional. The fact that the information was
16
being used for purposes other than publication was irrelevant. The Supreme Court declined to review
the case.66
The Supreme Court has not yet decided a case in which a party sought to apply the First
Amendment to overturn a privacy law or regulation that restricted the private-interest use of truthful
personal information in the market, but did not otherwise restrain publication or public expression. It is
therefore unclear how the Court might evaluate the constitutionality of such a law.
The Court came close to addressing such a situation in two recent cases involving privacy laws,
but for important reasons neither case was directly on point. They may nevertheless be instructive.
In the first case, Los Angeles Police Department v. United Reporting, the Court upheld the
constitutionality of a California statute that prohibited the release of arrestee addresses to anyone for the
purpose of using them to sell a product or service.67 In the Court’s discussion of whether the statute was
subject to “facial” challenge under the First Amendment (as opposed to being challenged only if actually
applied to restrict expression), Chief Justice Rehnquist wrote:
This is not a case in which the government is prohibiting a speaker from conveying
information that the speaker already possesses. The California statute in question merely
requires that if respondent wishes to obtain the addresses of arrestees it must qualify
under the statute to do so. Respondent did not attempt to qualify and was therefore
denied access to the addresses. For purposes of assessing the propriety of a facial
invalidation, what we have before us is nothing more than a governmental denial of
access to information in its possession.68
And that “denial of access,” in the Court’s view, raised no constitutional issues. In fact, the
Court wrote, “California could decide not to give out arrestee information at all without violating the
First Amendment.”69 This did little more than restate the Court’s longstanding position that the First
Amendment does not give rise to a general right to access information held by the government. By
focusing on the “facial” nature of the challenge, and by construing the case as a case involving access to
17
government information, the Court avoided addressing the question of whether a similar limit on using
information obtained from nongovernmental sources would be constitutional under the First
Amendment.
In the second case, Reno v. Condon, the Court upheld the constitutionality of the Drivers
Privacy Protection Act, a law requiring states to restrict the disclosure of personal information contained
in motor vehicle records.70 The unanimous Court, in its discussion of whether the commerce clause gave
Congress the authority to adopt the law, wrote that “the personal, identifying information that the DPPA
regulates is a ‘thing in interstate commerce,’” and referred to that information throughout its opinion
simply as “an article in interstate commerce,”71 like a truckload of coal or steel. This case involved no
First Amendment challenge at all and, even if it had, the Court would likely have treated it as another
“access to government information” case.
As a result, neither of these cases is directly on point. Moreover, both were decided on fairly
technical issues concerning the availability of facial challenges and the power of Congress under the
commerce clause and the Tenth Amendment. But it is nonetheless important to note that in both cases
the Court demonstrated no special solicitude for the fact that information was involved, but instead
almost casually dismissed the information in question as just another “thing” that legislatures may
regulate. This stands in stark contrast to the considerable protection that the Court has interpreted the
First Amendment as applying to expression, so there is some confusion as to the Court’s future direction
when faced with a direct First Amendment challenge to a privacy statute.
•
The First Amendment Applied to Privacy Contracts
Another important First Amendment issue addressed by the roundtable participants is the extent
to which the First Amendment is implicated by privacy agreements—contracts or privacy policies.
Because they are agreements between private parties, contracts are usually thought to raise few if any
constitutional issues. However, the government often provides procedural or default rules for contracts
and the question of whether it is constitutionally free to do so in the privacy arena generated
considerable debate.
18
For example, may the government constitutionally require that consumer consent to privacy
contracts be manifest in writing or through some other mechanism indicting explicit, “opt-in” consent?
The answer is not clear, but appears to turn on how burdensome those requirements would be to
expression. In Cohen v. Cowles Media Company, for example, the Supreme Court faced the question
of whether a newspaper should pay damages for failing to keep its promise to a confidential source not
to disclose his identity, even though those damages would undoubtedly interfere with the newspaper’s
ability to publish and would create a disincentive for disclosing newsworthy information on a matter of
great public concern in the future.72 The Court concluded that the law imposing penalties for breaking
promises should be enforced, even against the press.
Respondents and amici argue that permitting Cohen to maintain a cause of action for
promissory estoppel will inhibit truthful reporting because news organizations will have
legal incentives not to disclose a confidential source’s identity even when that person’s
identity is itself newsworthy. . . . But if this is the case, it is no more than the incidental,
and constitutionally insignificant, consequence of applying to the press a generally
applicable law that requires those who make certain kinds of promises to keep them. 73
In other cases, however, the Court has struck down procedural burdens that had the effect of
restricting expression, and the Court routinely blocks laws that affect expression and are more restrictive
than necessary to serve their stated purpose. So the extent to which the First Amendment will impose
any limit on the government’s ability to impose procedural requirements for privacy contracts, or default
rules that apply in the absence of such contracts, is unsettled but critical important.
19
•
Summary
There was broad agreement among the participants at the roundtable that to the extent privacy
laws restricted the communication of information, they would certainly implicate the First Amendment.
And most privacy laws would appear to affect communication, either directly, or indirectly, as was the
case in U.S. West. But this conclusion, while significant, belies a number of important questions:
1. Under what standard should privacy laws be reviewed: the “intermediate scrutiny” typically
applied to “commercial speech” and cases in which expression is mixed with conduct, or the
“strict scrutiny” usually applicable to direct government restraints on truthful expression, prior
restraints, restraints based on the viewpoint or, in many cases, on the content of the expression?
2. Does the First Amendment apply (and, if so, with equal force) to privacy laws that restrict the
collection and private use of personal information in the market, but do not otherwise restrain
publication or public expression?
3. If personal information is collected or disclosed in violation of a law or contract, is the First
Amendment implicated when the government seeks to restrict the use of that personal
information by an “innocent” third party, where the use implicates no matter of general public
concern?
4. While the Court has tended to assume that the protection of privacy is a “compelling” or
“substantial” state interest, given the ubiquity and amorphousness of information flows, is any
law likely to serve that interest sufficiently closely to be considered “narrowly tailored” or the
“least restrictive means” for achieving the privacy protection goal?
It is also unclear to what extent the public’s reaction to the September 11 terrorist attacks, the
use of personal identification to identify and locate witnesses and suspects, and the threat of future
terrorist attacks will influence the debate over the extent to which the First Amendment restrains the
power of the government to enact privacy laws applicable to the private sector. These developments
20
could have no lasting impact on this debate; they could diminish the importance courts attach to privacy
interests by explicitly giving new credence to countervailing interests, such as the prevention and
prosecution of terrorism; or they could exercise a more subtle, but nevertheless powerful, influence on
judicial thinking about privacy. Some of these implications are discussed in greater detail below.
Concluding Observations
Participants in the Joint Center roundtable noted a number of general themes that they, from
their diverse perspectives, identified in the current privacy debate. There was often considerable
disagreement about these observations, but they provoked significant discussion and are clearly relevant
to any effort to understand the role of the Constitution in evaluating privacy laws.
The Meaning of Privacy
Many of these observations concerned the evolving definition of “privacy.” The participants
noted the wide range of meanings given that word. Professor Eugene Volokh identified six distinct
meanings of “privacy” in the current debate: the desires to control the dissemination of embarrassing
information; avoid the distraction or annoyance of unsolicited mail or telephone calls; be free from
crimes, such as identity theft; control the availability of information that can be used for legal or illegal
discrimination; protect against breaches of trust; and control the use of information almost as a property
right, even if the use of that information poses no risk of harm. Other participants added other
definitions: the desires to have the space and solitude necessary to make decisions; fill gaps or avoid
harms created by market failures; and avoid creating collections of personal information that might then
be available for government search and seizure.
Other participants cautioned against over-categorizing types of privacy or over-rationalizing
privacy concerns, noting that many surveys and opinion polls appear to reflect a general angst that is
likely the result of many factors including lack of knowledge and understanding about how information is
collected, used, and protected.
However categorized, the breadth and variety of privacy definitions raise significant issues. It
helps explain why privacy has been so popular in legislative contexts—because no one can be against
21
it—yet it runs the risk of emotionalizing and confusing the issue, as Ollie Ireland noted, by ignoring the
substantial benefits of open information flows. Readily available reliable information increases economic
efficiency, reduces crime, and may even serve other “privacy” interests, such as cutting down on identity
theft and junk mail. Moreover, in light of the recent terrorist attacks, the very breadth and malleability of
the term “privacy” may undercut support for new privacy laws of all forms as legislators fear supporting
legislation that might appear, even if mistakenly, to impede the search for clues and the prevention of
future terrorist acts.
The diversity of definitions also heightens the extent to which laws may purport to serve one
definition but in fact serve some entirely other purpose. For example, while the rhetoric of the current
political privacy debate is to invest individuals with “control” over information about them, recent
privacy laws such as Title V of the Gramm-Leach-Bliley Financial Services Modernization Act provide
individuals with very little control over such information. Most information collection and use in the
financial services industry takes place under exceptions to the Act.
The most relevant risk to understanding constitutional issues raised by privacy laws, however, is
that the failure to differentiate between meanings of privacy skews the constitutional analysis. It is
impossible to know how important a privacy interest is, or whether a law or regulation serves that
interest, if that interest is never identified with specificity.
The Range of Affected Parties
Who is affected by privacy laws? Although the political debate often refers only to people about
whom information is collected or used, and the people who want to collect or use the information, the
impact of most laws is much broader. There are broader societal interests, such as the protection of
children, as Professor Etzioni suggested during the roundtable, or the protection of the public from
terrorism, as we have recently been reminded. There are broader economic interests, if the presence or
absence of privacy protection raises the cost of goods and services that everyone must pay. And there
are broader political interests, as the Supreme Court has often noted as the justification for denying
public officials privacy rights.
22
Recognizing the wide range of people affected by privacy laws is especially important when
considering the role of the constitution, because constitutional values often reflect a broader range of
interests than just those of the parties before the Court.
Privacy in Context
Many participants noted the importance of examining privacy issues in context—not just the
context of other issues and values, but also the specific context in which a constitutional challenge is
raised. As Professor Peter Swire noted, even in the Supreme Court’s “privacy” cases that we have
already examined, how the privacy issue was decided almost always determined by the legal context in
which the issue was presented—as part of the Court’s commerce clause analysis, or the evaluation of a
facial First Amendment challenge, as a restriction on government release of private information, or in
tension with important press freedoms. The context will significantly affect both the outcome of the case
and the way in which privacy issues are analyzed.
Privacy and Change
“Change” was a recurring theme throughout the roundtable. Participants noted the extent to
which the public’s expectations of privacy are changing and the many influences that shape those
expectations, including changes in technology, law, and experience. For example, the flood of privacy
notices generated by Gramm-Leach-Bliley or the Health Insurance Portability and Accountability Act,
for example, however significant their direct effect on consumer’s control of information about them,
also serve to heighten those consumers’ awareness and may increase or diminish their concerns.
Computers, more than any other single factor, seem to be playing a major role in influencing and
changing privacy concerns. Computers and the networks that connect them are dramatically expanding
both the practical ability to collect and use personal data and the economic incentive to do so. Some
participants and other commentators argue that the information revolution is making everything
different—that the constitutional protection for information flows in the 1970s and 80s was in part made
possible by the practical difficulty of collecting and disseminating information. Now that anyone can
23
affordably and easily access technologies that assemble data about, and disseminate those data to,
millions of people, there is growing pressure for law to help create what was once practical obscurity.
Others argue the exact opposite—that the explosion in information technologies decreases both
the ability of, and the need for, law to protect privacy. Instead, we should recognize the democratic
promise of technologies that help equalize our access to information and our ability to speak, and that
provide technological protections for privacy that were never dreamed of before. But both perspectives
agree about the singular importance of the computer revolution.
Public and Private Spheres
Participants discussed the historically significant distinction in constitutional analysis between the
government and all other actors, and questioned whether technologies were contributing to breaking
down this barrier. As noted, the Constitution traditionally limits only actions by the government.
However, as technologies give anyone the power to capture information, and create incentives for large
private-sector databases that can then be accessed by the government, some participants wondered
whether the constitutional distinction between public and private retains the same significance.
Other participants, however, counter that this is a red herring, because only the government has
the power to compel the disclosure of information free from market pressures. Moreover, to have the
government enact laws restricting the creation of private-sector databases as a way to discourage itself
from accessing those databases is nonsensical, they argue. If the government is that concerned about
citizen privacy—as it should be—then the government should adopt laws limiting its access to privatesector databases. However, as the events of September 11 and the subsequent search for witnesses
and suspects have reminded us, there can be tremendous value to the public for the government to have
access to private-sector records, such as credit card receipts, rental car records, and airline reservation
information. The real issues may be the terms under which access is provided and the uses to which the
government may put that information, not whether there should be access or whether the information
should be collected at all.
24
IV.
Conclusion
The failure of the current privacy debate to consider the constitutional implications of enacting
laws to protect personal information from incursion by the private sector is problematic in view of the
significant limits imposed by the First Amendment on the government’s power to curtail expression.
Under those limits, the government bears the burden of demonstrating that privacy laws that interfere
with expression serve a “compelling” or “substantial” state interest, and are “narrowly tailored” or the
“least restrictive means” for achieving that purpose. This is a considerable burden for the government to
bear.
The precise extent of the restraint imposed by the First Amendment depends on the specific
requirements of those laws and the contexts in which those laws operate and are enforced. The role of
the First Amendment will also be influenced by broader factors about changing definitions and
expectations of “privacy,” the magnitude of the threats posed by too much or too little privacy
protection, the object of privacy laws, and their impact on expression, commerce, individual behavior,
and society. These and related issues are intrinsically intertwined with the discussion about the role of
the Constitution itself and the power of the government to adopt and enforce laws to protect private
information from intrusion by the private sector. Legislators, regulators, and prosecutors who ignore the
First Amendment or these broader issues when considering privacy laws do so at their—and our—
peril.
25
Notes
1
Professor of law, Ira C. Batman Faculty Fellow, and director of the Information Law and Commerce
Institute at the Indiana University School of Law—Bloomington, and senior fellow of the Hunton &
Williams Center for Information Policy Leadership. Professor Cate directed the Brooking Institution’s
Electronic Information Privacy and Commerce Study, chaired the International Telecommunication
Union’s High-Level Experts on Electronic Signatures and Certification Authorities, directed the American
Institute for Contemporary German Studies’ project on Electronic Commerce in Europe and the United
States, and was a member of the Federal Trade Commission’s Advisory Committee on Online Access and
Security. A visiting scholar at the American Enterprise Institute, Professor Cate is the author of many
related books and articles, including Privacy in Perspective (2001), The Internet and the First
Amendment (1998), and Privacy in the Information Age (1997). The authors thank Jean Walker for her
able research assistance.
2
Co-director of the AEI-Brookings Joint Center for Regulatory Studies; Vice President and Director of
the Economic Studies Program and Cabot Family Chair in Economics at the Brookings Institution. From
1995 to 1996, Dr. Litan was associate director of the Office of Management and Budget, and from 1993
to 1995 he served as deputy assistant attorney general, in charge of civil antitrust litigation and regulatory
issues, at the Department of Justice. From 1977 to 1979, he was the regulatory and legal staff specialist at
the President’s Council of Economic Advisers. He is the author of numerous books and articles, including
None of Your Business: World Data Flows, Electronic Commerce, and the European Privacy
Directive (1998) (with Peter P. Swire) and “Law and Policy in the Age of the Internet” in the Duke Law
Journal (2001). The authors thank Jean Walker for her able research assistance.
3
Children’s Online Privacy Protection Act of 1998, Pub. L. No. 105-277, 112 Stat. 2681-728 (codified as
amended at 15 U.S.C. §§ 6501-06 (1999)).
4
Gramm-Leach-Bliley Financial Services Modernization Act tit.V, 106 Pub. L. No. 102, 113 Stat. 1338
(1999) (codified at various sections of 15 U.S.C.).
5
Department of Transportation and Related Agencies Appropriations Act, Pub. L. No. 106-69, § 350, 113
Stat. 986, 1025-26 (1999).
6
Standards for Privacy of Individually Identifiable Health Information, 65 Fed. Reg. 82,462 (2000) (HHS,
final rule) (to be codified at 45 C.F.R. pt. 160, §§ 164.502, 164.506).
7
Federal Trade Commission, Online Profiling: A Report to Congress (Part 2)—Recommendations
(July 2000); Federal Trade Commission, Privacy Online, supra.
8
Griswold v. Connecticut, 381 U.S. 479 (1965).
9
Id. at 484.
10
Id.
11
Standards for Privacy of Individually Identifiable Health Information, 65 Fed. Reg. 82,462, 82,464 (2000)
(HHS, final rule).
12
429 U.S. 589 (1977).
13
Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559 (1985) (quoting Estate of
Hemingway v. Random House, Inc., 23 N.Y.2d 341, 348, 244 N.E.2d 250, 255 (Ct. App. 1968).
14
121 S. Ct. 1753 (2001).
15
Id. at 1764.
16
389 U.S. 347, 361 (1967) (Harlan, J., concurring).
17
Terry v. Ohio, 392 U.S. 1, 9 (1968); Smith v. Maryland, 442 U.S. 735, 740 (1979). The Court has found
“reasonable” expectations of privacy in homes, businesses, sealed luggage and packages, and even drums
26
of chemicals, but no “reasonable” expectations of privacy in bank records, voice or writing samples, phone
numbers, conversations recorded by concealed microphones, and automobile passenger compartments,
trunks, and glove boxes.
18
Pub. L. No. 103-322, 108 Stat. 1796 (1994) (codified at 18 U.S.C. §§ 2721-2725).
19
Condon v. Reno, 155 F.3d 453, 464 (4th Cir. 1998), rev’d on other grounds, Reno v. Condon, 528 U.S.
141 (2000).
20
Id. at 465
21
Condon v. Reno, 528 U.S. 141 (2000).
22
467 U.S. 986 (1984).
23
Id. at 1011.
24
See Jan G. Laitos, “The Takings Clause in America’s Industrial States After Lucas”, 24 University of
Toledo Law Review 281, 288 (1993).
25
Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1026 (1992).
26
Id. at 1027, 1029.
27
U.S. Constitution, article I, section 8, clause 3.
28
528 U.S. 141 (2000).
29
Id. at 148.
30
Id. at 151.
31
See generally Miseretta v. United States, 488 U.S. 361 (1989).
32
Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191 §264(c)(a), 110 Stat.
1936, 2033 (1996) (codified at 42 U.S.C.A. § 1320d-3(a) (West Supp. 1998)). See generally A. Craig
Eddy, “A Critical Analysis of Health and Human Services' Proposed Health Privacy Regulations in Light
of The Health Insurance Privacy and Accountability Act of 1996,” 9 Annals of Health Law 1 (2000).
33
Standards for Privacy of Individually Identifiable Health Information, 65 Fed. Reg. 82,462 (2000) (HHS,
final rule) (to be codified at 45 C.F.R. pt. 160, §§ 164.502, 164.506).
34
South Carolina Medical Ass’n v. U.S. Dep’t of Health and Human Services (D.S.C. filed July 18,
2001).
35
2001 U.S. LEXIS 1952 (2001).
36
U.S. Constitution, article 1, section 10, clause 3.
37
United States Steel Corp. v. Multistate Tax Commission, 434 U.S. 452 (1978).
38
See generally Virginia v. Tennessee, 148 U.S. 503 (1893); Cuyler v. Adams, 449 U.S. 433 (1981).
39
Public Utilities Commission v. Pollack, 343 U.S. 451 (1952).
40
Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).
41
Cohen v. California, 403 U.S. 15 (1971).
42
Martin v. Struthers, 319 U.S. 141 (1943).
43
Lamont v. Postmaster General, 381 U.S. 301 (1965).
44
Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996).
45
New York Times Co. v. United States, 403 U.S. 713 (1971).
46
Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978).
47
Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979).
48
Florida Star v. B.J.F., 491 U.S. 524 (1989); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975).
49
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986).
50
New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323
(1974).
27
51
Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971).
Peter B. Edelman, “Free Press v. Privacy: Haunted by the Ghost of Justice Black,” 68 Texas Law
Review 1195, 1198 (1990).
53
Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U.S. 557, 566 (1980); Board of
Trustees v. Fox, 492 U.S. 469, 480 (1989).
54
Central Hudson, 447 U.S. 557.
55
Lowe v. Securities and Exchange Commission, 472 U.S. 181 (1985). See generally Eugene Volokh,
“Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From
Speaking About You,” 52 Stanford Law Review 1049 (2000).
56
Edenfield v. Fane, 507 U.S. 761, 770-71 (1993).
57
121 S. Ct. 1753 (2001).
58
Id at 1765 (quoting Time, Inc. v. Hill, 385 U.S. 374, 388 (1967) (quoting Thornhill v. Alabama, 310 U.S.
88, 102 (1940))).
59
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985).
60
Id. at 762 n.8.
61
121 S. Ct. 1765 n.21 (quoting Butterworth v. Smith, 494 U.S. 624, 634 (1990)).
62
U.S. West, Inc. v. Federal Communications Comm’n, 182 F.3d 1224, 1235 (10th Cir. 1999), cert.
denied, 528 U.S. 1188 (2000).
63
Id. at 1235 (quoting Rubin v. Coors Brewing Co., 514 U.S. 476, 486 (1995)).
64
Id.
65
Id.
66
U.S. West, Inc. v. Federal Communications Comm’n, 528 U.S. 1188 (2000).
67
Los Angeles Police Department v. United Reporting Publishing Corp., 528 U.S. 32 (1999).
68
Id. at 40 (citations omitted).
69
Id.
70
Condon v. Reno, 528 U.S. 141 (2000).
71
Id. at 148 (quoting United States v. Lopez, 514 U.S. 549, 558-559 (1995)).
72
Cohen v. Cowles Media Co., 501 U.S. 663 (1991).
73
Id. at 671.
52